Each year, the American Bar Association collects a great deal of information in questionnaires sent to its 201 accredited law schools. It circulates some of that information to the law schools in reports called “take-offs,” and it then publishes a subset of that information in the annual ABA Official Guide. Unfortunately, the ABA treats as confidential all the information in the take-offs except that which it publishes in the Official Guide.

Similarly, the ABA enforces uniform accreditation standards. Some of its decisions concerning a school’s compliance with the standards become public, but many other decisions, including the variances it grants as departures from the standards, are likewise confidential. These departures create a degree of inconsistency, of course, but they also provide an unfair advantage to the schools that received them. Disclosure of the variances would permit the other schools to learn about and perhaps seek similar favorable treatment. Other than avoiding similar requests from others, there is no reason to treat these decisions as confidential. To the contrary, disclosure would make the public and the other schools aware that some schools are allowed to avoid complying with the standards that presumably all accredited schools meet.

Cooley has a long tradition of openness and disclosure, including disclosure of the reports produced by the accrediting bodies that are adverse or critical. We have done that so that our students are aware of what is occurring in the accreditation process. Where we have access to information about other schools, particularly through the ABA Official Guide, we provide detailed comparisons of Cooley to the other schools. We would like to be able to compare other aspects based on the information available to the ABA, but we cannot do so because of the ABA’s confidentiality policy and its refusal to tell us about variances. Yet very little of that information is sensitive, including the financial information. We are prohibited, for example, from comparing physical plant size because that item is no longer included in the ABA Official Guide. And, because 40% of the law schools are public and already subject to state FOIA and OMA laws, much of that information could be obtained, but only with difficulty.

We would like to see the presumption of non-disclosure removed, to be replaced by a presumption that all information required in the ABA questionnaires is public information. The only exceptions would be to protect from disclosure anything that would reveal information about individual students, staff members, or faculty members and or violate privacy laws. The simplest way to do this would be for the ABA to publish the take-offs on its website, making them available to anyone who wanted the information. They could charge a fee to those who seek this information.

In our view, the situation regarding transparency in legal education has deteriorated to the point that suspicion now overrides reality. Precisely because the schools have nothing to hide, disclosure should occur.

The schools that favor candor and embrace transparency are at a competitive disadvantage when they provide information that others withhold. By disclosing all ABA-required information and allowing all law schools to use the information, we would keep the playing field level and raise the quality of debate. We would change the focus from the need for transparency to the substance of what is disclosed. Indeed, we would change the nature of the debate from perception to reality. How harmful can that be?